IIRC, its a court decision on the independent contractor question that complicates things. But it's late at night and I'm not entirely reliable right now.
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Double Bass AFM...your thoughts?
- Thread starter fabledsoe
- Start date
IIRC, its a court decision on the independent contractor question that complicates things. But it's late at night and I'm not entirely reliable right now.
Hey, I'm actually from the bass guitar side of the board, but came here via a link about the AFM. I just want to say that it's nice that people over here actually understand labor law.
(In another life time, I was an NLRB field examiner by the way
)
(In another life time, I was an NLRB field examiner by the way
)
Folks: this is a bit complicated, I'm generalizing/simplifying like crazy, and I don't want to make a genuine study of this, but bear with me.
"Concerted activity" among private-sector employees is protected by the National Labor Relations Act ("NLRA"). This broad concept is the legal basis for lots of things that working people and unions do (in the early 19th Century concerted activity was held to be criminal, at the same time that the legal system was first recognizing the legal fiction known as the "corporation," which permits corporate owners generally not to be held liable for the actions of the corporation -- go figure!).
But what happens if the employees are not "employees" but are instead found to be "independent contractors?" Moreover, what if the "employer" is found to be the bandleader rather than the venue at which the band appears?
In the late 1940's, the federal labor laws were revised (the Taft-Harley Act) to exclude "independent contractors" from "employees" whose actions could constitute protected concerted activity. Not surprisingly, musicians can often be characterized as independent contractors (deciding when someone is in one category or the other can be tricky, and the IRS has promulgated the leading checklist on this question).
At the same time, court cases started showing up that differentiated bandleaders from venues as the "employer" of musicians (for example:Invalid Link Removed.), or that found musicians to be independent contractors.
So while I was not on the scene at the time, it's not hard to imagine the following positions taken by venues:
"You can't make me bargain with you, your bandleader is your employer, not me!"
"You can't make me bargain with you, you're only an independent contractor!"
You get the picture. In sum, musician activity to hold venues to union terms/conditions was undercut by these legal arguments.
So it goes.
"Concerted activity" among private-sector employees is protected by the National Labor Relations Act ("NLRA"). This broad concept is the legal basis for lots of things that working people and unions do (in the early 19th Century concerted activity was held to be criminal, at the same time that the legal system was first recognizing the legal fiction known as the "corporation," which permits corporate owners generally not to be held liable for the actions of the corporation -- go figure!).
But what happens if the employees are not "employees" but are instead found to be "independent contractors?" Moreover, what if the "employer" is found to be the bandleader rather than the venue at which the band appears?
In the late 1940's, the federal labor laws were revised (the Taft-Harley Act) to exclude "independent contractors" from "employees" whose actions could constitute protected concerted activity. Not surprisingly, musicians can often be characterized as independent contractors (deciding when someone is in one category or the other can be tricky, and the IRS has promulgated the leading checklist on this question).
At the same time, court cases started showing up that differentiated bandleaders from venues as the "employer" of musicians (for example:Invalid Link Removed.), or that found musicians to be independent contractors.
So while I was not on the scene at the time, it's not hard to imagine the following positions taken by venues:
"You can't make me bargain with you, your bandleader is your employer, not me!"
"You can't make me bargain with you, you're only an independent contractor!"
You get the picture. In sum, musician activity to hold venues to union terms/conditions was undercut by these legal arguments.
So it goes.
It's a question of jurisdiction. The courts have ruled with regard to musicians and actors, that unions such as the AFM and SAG have jurisdiction UNDER CERTAIN CONDITIONS AND IN CERTAIN VENUES. The Supreme court didn't buy it in the case I cited above that musicians were independent contractors. The court ruled on appeal that the bandleaders were in fact employers. And likewise, TV producers are employers too. That's not the reason we can't get scale in a non-union club. Taft Hartley?
It's Taft-Hartley and the cases together, and it really comes down to when do the musicians have the ability to enjoy NLRA rights in dealing directly with the venue.[/U]. Courts decide whether the musicians are indie contractors and whether the NLRA applies, at which point the Taft-Hartley consequences may follow. If the bandleader is the "employer," the bargaining relationship is between the musicians and the bandleader, and the venue is off the hook. If the venue can be tagged as the employer, then you're getting somewhere...and there are situations where this does occur. But even then, the venue can play the "you're an independent contractor" card, so the musicians will likely not have NLRA protection with respect to bargaining rights and process. It's like the venues have two "get out of jail free" cards.
Here are a few more cases you can look at on the general question:
Link Removed (focusing on Title VII rights, but the same basic dodge that the musicians are indie contractors - also check out the cases surveyed in the "Prior Musician Case Law" section, particulary the Hilton Hotel case: Link Removed)
The Carroll v. AFM case that you cited [http://ftp.resource.org/courts.gov/c/F2/372/372.F2d.155.75.76.30445.30446.html] relies on this same step (musicians are employed by their bandleaders) then takes it one step further by finding that the AFM violates the Anti-Trust laws by representing bandleaders in trying to hold venues to a minimum rate. Understand that collective bargaining rights are viewed as an exemption to the anti-trust laws; once the bandleaders were found by the court not to be "employees" under the protection of the NLRA, the exemption no longer applied. Chuck - you certainly pulled a critical case in demonstrating the problem!
